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In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal considered the adequacy of an EIR certified by Marin County (County) for a residential development. The Court rejected a number of arguments raised by opponents, most prominently the argument that the EIR erred in recognizing limits on the County’s discretion under two prior federal court stipulated judgments, and upheld the EIR. The opinion concludes with an acknowledgment that CEQA is manipulated to be a tool for obstruction of housing projects, and that the record in this case revealed extreme delay combined with local government animus, vindicating the worst fears of Supreme Court jurists and CEQA commentators.

The Martha Company (Martha) had sought for decades to develop housing on a 110-acre hilltop area (Project) in the County, overlooking the Town of Tiburon (Town) and the San Francisco Bay. The Project had long been controversial. It was repeatedly delayed due to intense local opposition and agency inaction, and was the subject of multiple lawsuits involving Martha and the County, as well as the Town and neighbors. The lawsuits resulted in two separate federal judgments entered pursuant to stipulated settlements, in 1976 and 2007, respectively. In both, the County agreed that Martha would be permitted to construct no less than 43 single-family homes on the property, and that the County would approve such a project. Though there were further delays, including another lawsuit alleging the County was not complying with the settlements, eventually the County certified an EIR and issued preliminary approvals for the Project in 2017. Tiburon Open Space Committee and other organizations (Petitioners) filed this suit soon after. The trial court granted the Town leave to intervene as well. The trial court denied the Petition and both Petitioners and the Town appealed.

Abdication of Authority

A central contention of the Town, which had also been raised in prior litigation, was that the County’s agreement to the settlements was akin to contracting away its police power. On this theory the Town argued that the settlements should be considered void and that the County’s approval of the 43-unit project, and rejection of a lower density alternative, was an abuse of discretion due to the limiting terms of the settlement agreements. In essence, the Town’s position was that the County never truly exercised its lawful discretion, considering itself to be constrained by the settlements, and instead its administrative proceedings “were a lengthy and pointless kabuki performance where every official knew what the final result would be.”

However, the Court found the argument to be meritless. First, it noted that the County had in fact exercised discretion in preparing the 850-page EIR. The Court also noted that CEQA dictates that environmental review is commensurate with the limits of agency discretion. The Town’s argument, however, turned this principle on its head by suggesting that a limitation on agency discretion is unenforceable under CEQA. The Court reiterated that a legal limitation on agency discretion does not violate CEQA, but rather that CEQA review must account for the limitation – precisely what the EIR did here. The County evaluated the Project’s environmental impacts, but appropriately recognized that legal considerations are a valid basis for approving a project notwithstanding significant and unavoidable impacts under Public Resources Code section 21081(a)(3). Thus, this was not a case in which the County willfully agreed to refrain from required CEQA review.

The Court also faulted Petitioners and the Town for ignoring the legal force of the settlement agreements, observing that “no reason in law or logic” prevents a federal stipulated judgment from rendering less dense Project alternatives legally infeasible, though the Court cautioned that courts might scrutinize claims of legal infeasibility, a finding that “smacks of a legal conclusion.”

The Court also rejected a number of related arguments. The stipulated judgments did not violate a prohibition on overriding state law, and were likewise not required to include findings necessary to override state law, because state law had not been violated. Nor was the statutory presumption that officials performed their official duties rebutted. Lastly, the Court found Petitioner’s argument that the County was required to ignore the settlements in order to certify that the EIR reflected the County’s independent judgment to be untenable on its face.

The Court additionally considered Petitioners’ argument that the project description was unduly narrow by recognizing the 1976 stipulated judgment’s 43-unit requirement. But the Court found this too to be a reframing of the same argument that the County abdicated responsibility. On the substance, the Court found the EIR’s description of the project’s type and nature to be “unmistakably straightforward—the construction of 43 suburban single-family residences.”

For the same reason, the Court upheld the County’s rejection of a 32-unit alternative evaluated in the EIR on the basis that it was legally infeasible. The Court further confessed “slight puzzlement” at the argument, finding that the alternative could have permissibly been omitted entirely from the EIR on that basis.


The EIR recognized traffic safety impacts that could occur within the Town’s jurisdiction due to increased traffic on narrow and winding streets. To address the impact, the EIR concluded that the Town could and should prohibit dumpsters along the narrower streets. The Town objected to being required to mitigate this impact itself by changing the Town’s law, and also argued that the measure was unenforceable. The Court disagreed with the Town on both points, noting that CEQA allows an EIR to identify mitigation that should be adopted by another entity that has exclusive jurisdiction. Speculation that a municipality might not agree to such mitigation is not sufficient to show a CEQA violation. Further, the Town identified no other mitigation for the impact that it considered to be feasible. As such, the Court deferred to the County’s good faith attempt to address the traffic impacts.

With respect to mitigation of pedestrian safety, the EIR did not make the express finding that another agency could and should mitigate the impact. However, the Court found this argument to have been waived, as the Town did not respond to Martha’s argument that there had been no exhaustion. And even on the merits, the Court agreed with Martha that, at most, the omission was a de minimis scrivener’s error that was not prejudicial.

Petitioners argued that the EIR’s evaluation of traffic congestion, using the LOS standard required to be used by both the County and Town, was inadequate. Specifically, they complained that peak traffic occurred in mid-afternoon, when schools let out, and not at the time evaluated as afternoon peak in the EIR. The Court relied on the trial court’s exhaustive analysis of the issue, finding that the County, through the EIR traffic consultant, adequately addressed the complaint when raised in comments, and that the methodology used to evaluate LOS impacts was supported by substantial evidence.

Biological Resources

To address potential impacts to the California red-legged frog (CRLF), the EIR adopted a number of mitigation measures. The Town argued that these deferred mitigation by requiring the Project to implement best management practices (BMPs). But the Court disagreed, finding the BMPs to be accepted as conditions of approval and to have already been in existence in Martha’s Stormwater Control Plan. Further, the mitigation mandating preparation and implementation of a stormwater pollution prevention plan essentially required compliance with existing regulations – “a common and reasonable mitigation measure [that] may be proper where it is reasonable to expect compliance.” The Court also found that the Town failed to make an integrated examination of all of the underlying documents, measures, and governmental oversight that the mitigation measures relied on in determining their effectiveness. As such, the Town’s briefing on the matter was inadequately supported.

Likewise, though the Town complained that the EIR inadequately mitigated diminished runoff from a stream leading to a pond important to CRLF, the Court disagreed. It found the mitigation setting standards for Martha’s Stormwater Control Plan to constitute a comprehensive attempt to deal with the problem, especially considering that the pond’s owner was not willing to cooperate in any mitigation whatsoever.

Fire Hazards

Petitioners complained that mitigation inadequately reduced fire risks because a lack of vertical separation from the elevation of a proposed water supply tank and fire hydrants inhibited the available water pressure for fire flow on certain lots. The Court held that Petitioners had not adequately exhausted on this issue. But it also found the contention to be unsupported, noting that Petitioners were erroneously putting the burden on the County and Court to disprove the “naked claim” that the EIR’s analysis was unsupported. Further, on the substance, the Court held the trial court’s reasoning to be apt, concluding that conditions of approval, verified by relevant water and fire districts, adequately supported the EIR’s conclusion that fire flow impacts would be less than significant with the mitigation. While Petitioners argued that local agencies would not ensure that adequate pressure would be maintained, the Court found these to be “unjustifiable suspicions.”

Construction Safety Hazards

Lastly, the Court considered Petitioners’ argument that the EIR failed to address risks associated with heavy construction equipment traveling up a steep construction road. Petitioners argued that the EIR was required to evaluate the risk of construction equipment “careening into public spaces and thoroughfares, endangering pedestrians, bicyclists and drivers.” The Court was unpersuaded, agreeing with the trial court that there was “nothing remotely in the record to support such a scenario.” Further, Petitioners did not address the trial court’s determination that the alleged risks were to Project workers, and not the existing population or environment, and were therefore not a CEQA concern. The Court also found Petitioners’ arguments suggesting increased landslide and fire risks to be lacking support.

Court of Appeal’s Concluding Thoughts

In conclusion, the Court noted that it had quoted the trial court’s decision at length for two reasons. First, it recognized that many CEQA trial court judges are designated CEQA judges with expertise, and that their analyses are owed a good deal of respect by a reviewing court. Second, the Court emphasized that to prevail, a petitioner appellant challenging a trial court ruling under the substantial evidence standard must show why the evidence identified by the trial court is insufficient.

Lastly, the Court took heed of the dissenting opinion in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (dis. opn. of Chin, J.) (see TLG’s coverage here), in which Justice Chin warned of CEQA litigation enabling project opponents to wage never-ending battles of attrition, with delay itself becoming its own reward. In the Court’s view, the case at hand vindicated the worst of those fears, with a dispute “almost as old as CEQA itself” and an EIR more than 20 years in the making. The Court cited literature and commentary highlighting how CEQA’s noble purposes “can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density,” finding these fears to have been realized by the record of this case. The Court also highlighted the pressure that project proponents must face when there is concerted animus to a project, not only from private parties, but two levels of local government. Having surveyed this record, the Court concluded that something was “very wrong with this picture.”

Key Points:

  • Environmental review can and should recognize valid legal limits on agency discretion over a project.
  • CEQA is not intended to be a tool used for delay or obstruction.